NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1903
SPONSOR: Fahy TITLE OF BILL:
An act to amend the county law, the executive law and the state finance
law, in relation to indigent defense services
PURPOSE OR GENERAL IDEA OF BILL:
To ensure that all persons accused of crimes in New York are able to
receive effective legal representation whether or not they have the
ability to pay for a lawyer by establishing a system of direct state
funding at the requisite adequate level to eliminate the geographic
disparity in representation.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1: provides legislative findings and declaration.
Section 2: amends Section 722-e of the County law to require the State
to reimburse, over a seven year four year phase in period, counties and
cities in which a county is wholly located the full amount of expenses
of counsel services for indigent legal defendants.
Section 3: "Subdivision 3 of section 832 of the executive law, as added
by section 1 of part E of chapter 56 of the laws of 2010, is amended and
a new paragraph (n) is added to read as follows: (n) to adopt, promul-
gate, amend or rescind rules and regulations to carry out the provisions
of this section, including to (i) ensure the presence of counsel at the
first appearance of any eligible defendant charged with a crime,
(ii)establish caseload/workload regulations for attorneys providing
mandated representation, and (iii) improve the quality of mandated
representation."
Section 4: amends subdivision 3 of section 98-b of the state finance
law, as amended by part E of chapter 56 of the laws of 2010.
Section 5 is the effective date.
JUSTIFICATION:
The state has just recently settled a lawsuit with five counties
Suffolk, Washington, Ontario, Onondaga, and Schuyler - in which the
settlement calls for the Office of Indigent Legal Services to be in
charge of the public defense operations in the five counties. This would
be the first time in New York that a statewide entity will be responsi-
ble for legal representation of all indigent criminal defendants. Coun-
ties statewide are currently responsible for funding indigent legal
services by federal mandate but adherence is uneven and dependent on a
particular county's ability or inability to properly fund the program.
Many counties have no system for supervising caseloads or quality, no
staffing formula to ensure an appropriate number of public defenders,
and no standard ensuring comparable compensation for defenders.
My legislation would amend the law to provide for the state to take over
full funding of the program in 2024, and relieve all counties of this
financial strain. As the Governor noted during the State of Opportunity
agenda, local governments have been struggling while the state's
finances have generally improved. Now is the time for the state to rein-
vest in its counties and relieve the counties of this unfunded mandate.
PRIOR LEGISLATIVE HISTORY:
New Bill
FISCAL IMPLICATIONS:
The bill would be effective April 1, 2018.
STATE OF NEW YORK
________________________________________________________________________
1903
2017-2018 Regular Sessions
IN ASSEMBLY
January 13, 2017
___________
Introduced by M. of A. FAHY, LENTOL, AUBRY, McDONALD, STECK, GOTTFRIED,
MAGNARELLI, CRESPO, SEPULVEDA, ARROYO, SIMOTAS, MAGEE, COLTON, CROUCH,
MONTESANO, RAIA, ROSENTHAL, WOERNER, JENNE, BRINDISI, MOSLEY, PALMESA-
NO, BRONSON, SKOUFIS, BARCLAY, BLANKENBUSH, CAHILL, STEC, MURRAY,
BARRETT, PEOPLES-STOKES, BUTLER, LUPARDO, LALOR, PICHARDO, RIVERA,
STIRPE, WALKER, JAFFEE, O'DONNELL, FINCH, RAMOS, RYAN, HUNTER, DAVILA,
GRAF, RODRIGUEZ, BRABENEC, OTIS, TITUS, PERRY, OAKS, MAYER, GUNTHER,
ENGLEBRIGHT, WEPRIN, KEARNS, ORTIZ, RICHARDSON, HYNDMAN, ABBATE,
BUCHWALD, ZEBROWSKI, SIMON, SEAWRIGHT, GLICK, BLAKE, COOK, GALEF,
GIGLIO, HAWLEY, HEVESI, HIKIND, LIFTON, LOPEZ, SKARTADOS -- read once
and referred to the Committee on Codes
AN ACT to amend the county law, the executive law and the state finance
law, in relation to indigent defense services
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings and declaration. It is a fundamental
2 right of all persons in the United States to be represented by counsel
3 in all criminal prosecutions. In the case of Gideon v. Wainwright, 372
4 U.S. 335, the United States Supreme Court ruled that indigent persons
5 accused in state felony cases who were unable to afford counsel had a
6 constitutional right to be defended by an appointed attorney paid by the
7 state. Subsequently, the Supreme Court determined that indigent persons
8 accused of any criminal charge that could result in imprisonment, wheth-
9 er a felony or misdemeanor, are entitled to counsel at the expense of
10 the state.
11 New York state has chosen to fulfill its obligation to provide repre-
12 sentation to indigent persons accused of a crime by requiring each coun-
13 ty outside New York city and New York city to implement and fund a plan
14 to provide such representation. In 2006 the Commission on the Future of
15 Indigent Legal Services concluded that a system of county operated and
16 funded indigent defense services failed to satisfy the constitutional
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06723-02-7
A. 1903 2
1 obligation to protect the rights of indigent persons accused of a crime.
2 Such Commission recommended that funding for indigent legal services
3 come from the State's general fund rather than from the counties.
4 New York state has entered into an agreement to settle a class action
5 lawsuit that alleged deprivation of the right to counsel in five coun-
6 ties. The agreement acknowledges that the Office of Indigent Legal
7 Services and the Indigent Legal Services Board are authorized "to moni-
8 tor and study indigent legal services in the state, to recommend meas-
9 ures to improve those services, to award grant monies to counties to
10 support their indigent representation capability, and to establish
11 criteria for the distribution of such funds." While the settlement
12 agreement pertains to only five counties, its criteria establish a stan-
13 dard for providing indigent legal services that should apply statewide.
14 The legislature finds and declares that in all criminal proceedings
15 against people unable to afford counsel, New York state is constitu-
16 tionally required to provide public defense services. The legislature
17 further finds that the state is obligated to undertake initiatives to
18 improve the quality of indigent defense, ensure representation at
19 arraignment, implement caseload standards for providers of indigent
20 legal services, and implement statewide standards for determining eligi-
21 bility for mandated representation. Mandating counties to finance the
22 state's obligation to provide indigent legal services imposes a signif-
23 icant uncontrollable financial burden on counties dependent on real
24 property taxes to fund needed services, and subject to a state imposed
25 tax cap.
26 The legislature finds and declares that in order to fulfill its
27 constitutional obligation to provide indigent legal services, the state
28 shall pay counties the full amount necessary to ensure the delivery of
29 quality legal services for indigent criminal defendants in a consistent
30 manner throughout the State.
31 § 2. Section 722-e of the county law, as added by chapter 878 of the
32 laws of 1965, is amended to read as follows:
33 § 722-e. Expenses. All expenses for providing counsel and services
34 other than counsel hereunder shall be a county charge or in the case of
35 a county wholly located within a city a city charge to be paid out of an
36 appropriation for such purposes and shall be reimbursed by the state to
37 the county or city providing such services, provided, however, that in
38 the state fiscal year beginning:
39 (a) April first, two thousand eighteen, the state shall provide
40 reimbursement for not less than twenty-five percent of such expenses;
41 and
42 (b) April first, two thousand nineteen, the state shall provide
43 reimbursement for not less than thirty-five percent of such expenses;
44 and
45 (c) April first, two thousand twenty, the state shall provide
46 reimbursement for not less than forty-five percent of such expenses; and
47 (d) April first, two thousand twenty-one, the state shall provide
48 reimbursement for not less than fifty-five percent of such expenses; and
49 (e) April first, two thousand twenty-two, the state shall provide
50 reimbursement for not less than sixty-five percent of such expenses; and
51 (f) April first, two thousand twenty-three, the state shall provide
52 reimbursement for not less than seventy-five percent of such expenses;
53 and
54 (g) every year thereafter, the state shall provide reimbursement for
55 the full amount of such expenses.
A. 1903 3
1 § 3. Subdivision 3 of section 832 of the executive law is amended by
2 adding a new paragraph (n) to read as follows:
3 (n) to adopt, promulgate, amend or rescind rules and regulations to
4 carry out the provisions of this section, including to (i) ensure the
5 presence of counsel at the first appearance of any eligible defendant
6 charged with a crime, (ii) establish caseload/workload regulations for
7 attorneys providing mandated representation, and (iii) improve the qual-
8 ity of mandated representation.
9 § 4. Subdivision 3 of section 98-b of the state finance law, as
10 amended by section 2 of part E of chapter 56 of the laws of 2010, is
11 amended to read as follows:
12 3. Amounts distributed from such fund shall be limited to amounts
13 appropriated therefor and shall be distributed as follows:
14 (a) The office of court administration may expend a portion of the
15 funds available in such fund to provide assigned counsel paid in accord-
16 ance with section thirty-five of the judiciary law, up to an annual sum
17 of twenty-five million dollars.
18 (b) [An] In addition to the amounts paid to each county and the city
19 of New York pursuant to section seven hundred twenty-two-e of the county
20 law and in accordance with sections eight hundred thirty-two and eight
21 hundred thirty-three of the executive law an annual amount [of forty
22 million dollars shall be made available to the city of New York from
23 such fund for the provision of services pursuant to article eighteen-B
24 of the county law; provided that the city of New York shall continue to
25 provide at minimum the aggregate amount of funding for public defense
26 services including, but not limited to, the amount of funding for
27 contractors of public defense services and individual defense attorneys,
28 that it provided, pursuant to article eighteen-B of the county law
29 during its two thousand nine--two thousand ten fiscal year] shall be
30 paid to such counties and city equal to the amount paid from such fund
31 to such counties and city in March two thousand ten.
32 (c) [Within the first fifteen days of March two thousand eleven, each
33 county other than a county wholly contained within the city of New York,
34 shall receive ninety percent of the amount paid to such county in March
35 two thousand ten. Within the first fifteen days of March two thousand
36 twelve, each county other than a county wholly contained within the city
37 of New York shall receive seventy-five percent of the amount paid to
38 such county in March two thousand ten. Within the first fifteen days of
39 March two thousand thirteen, each county other than a county wholly
40 contained within the city of New York shall receive fifty percent of the
41 amount paid to such county in March two thousand ten. Within the first
42 fifteen days of March two thousand fourteen, each county other than a
43 county wholly contained within the city of New York shall receive twen-
44 ty-five percent of the amount paid to such county in March two thousand
45 ten. For all state fiscal years following the two thousand thirteen--two
46 thousand fourteen fiscal year, there shall be no required annual
47 payments pursuant to this paragraph. Notwithstanding the provisions of
48 this paragraph, for each of the four required payments made to counties
49 within the first fifteen days of March two thousand eleven, two thousand
50 twelve, two thousand thirteen and two thousand fourteen, Hamilton and
51 Orleans counties shall receive such percentage payments based on the
52 amounts that each county would have received in March two thousand ten
53 had it satisfied the maintenance of effort requirement set forth in
54 paragraph (c) of subdivision four of this section in effect on such
55 date.
A. 1903 4
1 (d)] Remaining amounts within such fund, after accounting for annual
2 payments required in paragraphs (a)[,] and (b) [and (c)] of this subdi-
3 vision and subparagraph (iii) of paragraph (a) of subdivision two of
4 this section shall be distributed in accordance with sections eight
5 hundred thirty-two and eight hundred thirty-three of the executive law.
6 § 5. This act shall take effect April 1, 2018.
